Affirmed and Opinion Filed April 14, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00322-CR
No. 05-20-00323-CR
NICHOLAS ALEXANDER SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 196th Judicial District Court
Hunt County, Texas
Trial Court Cause Nos. 31520 and 31521
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Goldstein
Opinion by Justice Pedersen, III
I. BACKGROUND
This is an appeal of the judgment and sentence in two criminal cases.
Appellant was indicted for (i) the third-degree felony offense of Assault Family
Violence with a Prior Conviction and (ii) the second-degree felony offense of
aggravated assault with a deadly weapon. As to the third-degree felony offense,
appellant reached a plea agreement with the State, and he was sentenced to ten years
in the Texas Department of Criminal Justice. This sentence was probated for a period
of five years, and appellant was ordered to submit to terms of community
supervision. As to the second-degree felony offense, appellant reached a plea
agreement with the State, and he was placed on deferred adjudication for a period of
five years. For this second-degree felony offense, the other terms of probation were
principally identical to those of the third-degree felony offense. The terms of the plea
bargains and community supervision were to run concurrently.
On August 13, 2019, the State filed a Motion to Revoke Community
Supervision and Deferred Adjudication in each of the two cases, alleging appellant
failed to complete several of the ordered conditions of his community supervision
and deferred adjudication. The State later amended these motions to add four
additional allegations of probation violations. On February 19, 2020, the trial court
held a hearing on the State’s motions, and appellant plead true to seven allegations.
The State offered no further evidence, and based on appellant’s pleas, the trial court
found that the seven allegations were true. The trial court proceeded to the
punishment phase. After hearing evidence from the State and appellant, the trial
court assessed appellant’s punishment at (i) ten years’ confinement as to the third-
degree felony offense and (ii) twenty years’ confinement as to the second-degree
felony offense.
This appeal followed. The trial court appointed appellate counsel for
appellant, and she filed an Anders brief on his behalf, representing that she had
“diligently reviewed the entire record and the law applicable thereto and, in her
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opinion, the appeal is without merit and wholly frivolous in that the record reflects
no reversible error.”
II. ANDERS BRIEF
An Anders brief is a brief filed in support of an appointed attorney’s motion
to withdraw from an appeal that the attorney has concluded, after conscientious
examination of the entire record, is a frivolous appeal. Anders v. California, 386
U.S. 738, 744 (1967). Underlying the Anders procedure is the constitutional
requirement of substantial equality and fair process, which can only be attained if
appellate counsel acts in the role of an active advocate in behalf of her client. See
id. Ultimately, an appropriate Anders brief provides the court of appeals with an
assurance of integrity in the criminal proceedings in the trial courts that the court of
appeals supervises. In many ways, an Anders brief is an audit of the trial court’s
disposition.
To that end, an Anders brief must “discuss the evidence adduced at the trial,
point out where pertinent testimony may be found in the record, refer to pages in the
record where objections were made, the nature of the objection, the trial court’s
ruling, and discuss either why the trial court’s ruling was correct or why the appellant
was not harmed by the ruling of the court.” High v. State, 573 S.W.2d 807, 813 (Tex.
Crim. App. 1978). In addition to setting out an attorney’s due diligence investigation
on behalf of the client, the Anders brief has an additional use for an appellate court,
providing it “with a roadmap for their review of the record because the court itself
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must be assured that the attorney has made a legally correct determination that the
appeal is frivolous.” In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008).
III. DISCUSSION
Appointed counsel filed a separate motion to withdraw and a certification of
counsel. Appointed counsel’s certification states she had: (1) informed appellant of
her motion to withdraw and the filing of her Anders brief and provided him with a
copy of each; (2) informed appellant of his right to file a pro se response and of his
right to review the record; and (3) made the record available to appellant.1 Appointed
counsel’s certification, motions to withdraw, and Anders brief do not advise
appellant of his pro se right to seek discretionary review with the Texas Court of
Criminal Appeals, if we declared his appeal was frivolous. Appointed counsel must
provide such notice to the defendant.2
By letter dated June 18, 2020, we advised appellant of his right to file a pro se
response by August 1, 2020, and that failure to file a pro se response by that date
1
Appointed counsel’s motions to withdraw specify she “delivered to [a]ppellant a copy of the record
in this case.”
2
A lawyer who files an Anders brief must
write a letter to (1) notify his client of the motion to withdraw and the accompanying
Anders brief, providing him a copy of each, (2) inform him of his right to file a pro se
response and of his right to review the record preparatory to filing that response, and
(3) inform him of his pro se right to seek discretionary review should the court of appeals
declare his appeal frivolous. To this list we now add that appointed counsel who files a
motion to withdraw and Anders brief must also (4) take concrete measures to initiate and
facilitate the process of actuating his client’s right to review the appellate record, if that is
what his client wishes.
Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
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would result in the case being submitted on the brief filed by appointed appellate
counsel. We further advised appellant of his pro se right to seek discretionary review
with the Texas Court of Criminal Appeals if we declared his appeal was frivolous.
We have not received a pro se response from appellant.
Appointed counsel’s brief meets all of the requirements of Anders in that it
presents a professional evaluation of the record showing why there are no arguable
grounds to advance on appeal. See In re Schulman, 252 S.W.3d 403, 406 n.9 (Tex.
Crim. App. 2008) (“In Texas, an Anders brief need not specifically advance
‘arguable’ points of error if counsel finds none, but it must provide record references
to the facts and procedural history and set out pertinent legal authorities.”). In
compliance with High v. State, appointed counsel discussed why, under controlling
authority, there were no reversible errors in the trial court’s judgment. 573 S.W.2d
807, 811 (Tex. Crim. App. [Panel Op.] 1978).
When an appellate court receives an Anders brief from an appellant’s court-
appointed counsel asserting that no arguable grounds for appeal exist, we must
determine the issue independently by conducting our own review of the entire
record. Anders, 386 U.S. at 744 (emphasizing that the reviewing court, and not
appointed counsel, determines, after full examination of proceedings, whether the
case is “wholly frivolous”); see Crowe v. State, 595 S.W.3d 317, 318–19 (Tex.
App.—Dallas 2020, no pet.). We have thoroughly reviewed the record and have
found nothing that would arguably support an appeal. See Bledsoe v. State, 178
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S.W.3d 824, 827–28 (Tex. Crim. App. 2005) (“Due to the nature of Anders briefs,
by indicating in the opinion that it considered the issues raised in the briefs and
reviewed the record for reversible error but found none, the court of appeals met the
requirements of Texas Rule of Appellate Procedure 47.1.”). Accordingly, we agree
with counsel’s assessment that the appeal is frivolous and without merit.
IV. CONCLUSION
Based on the foregoing, we affirm the judgment of the trial court. Counsel’s
motion to withdraw is granted.
/Bill Pedersen, III/
BILL PEDERSEN, III
200322f.p05 JUSTICE
200323f.p05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NICHOLAS ALEXANDER SMITH, On Appeal from the 196th Judicial
Appellant District Court, Hunt County, Texas
Trial Court Cause No. 31520.
No. 05-20-00322-CR V. Opinion delivered by Justice
Pedersen, III. Justices Partida-
THE STATE OF TEXAS, Appellee Kipness and Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 14th day of April, 2021.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NICHOLAS ALEXANDER SMITH, On Appeal from the 196th Judicial
Appellant District Court, Hunt County, Texas
Trial Court Cause No. 31521.
No. 05-20-00323-CR V. Opinion delivered by Justice
Pedersen, III. Justices Partida-
THE STATE OF TEXAS, Appellee Kipness and Goldstein participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 14th day of April, 2021.
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